STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. ESSROC CEMENT
CORPORATION, Respondent. |
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AGREED ORDER
Complainant and Respondent
desire to settle and compromise this action without hearing or adjudication of
any issue of fact or law, and consent to the entry of the following Findings of
Fact and Order. Pursuant to IC
13-30-3-3, entry into the terms of this Agreed Order does not constitute an
admission of any violation contained herein.
Respondent's entry into this Agreed Order shall not constitute a waiver
of any defense, legal or equitable, which Respondent may have in any future
administrative or judicial proceeding, except a proceeding to enforce this
order.
I.
FINDINGS OF FACT
1.
Complainant is
the Commissioner (“Complainant”) of the Indiana Department of Environmental
Management (“IDEM”), a department of the State of
2.
Respondent is
Essroc Cement Corporation (“Respondent”), which owns and operates the portland
cement manufacturing facility with Plant ID No. 019-00008, located at Highway 31,
in Speed,
3.
IDEM has
jurisdiction over the parties and the subject matter of this action.
4.
Pursuant to IC
13-30-3-3, IDEM issued a Notice of Violation on April 18, 2007 via Certified
Mail to:
George
Gregory, President |
CT
Corporation System |
Essroc
Cement Corporation |
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3241
Bath Pike |
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5.
Based on stack
tests conducted on September 13 and 14, 2006, the following violations were
found:
a. Pursuant
to 40 CFR 63, Subpart LLL and condition D.3.5 of Part 70 Permit No.
19-0616-00008 issued June 15, 2004 (“Permit”), the combined particulate matter
(“PM”) emissions from the kiln #2 ( EU27), the fuel oil-fired heater for kiln
#2 (EU69) and kiln #2 bypass (EU28)
shall not exceed 0.30 pounds per ton of feed to kiln #2.
Respondent conducted compliance testing at the Site on September 13, 2006,
which demonstrated combined PM emissions from the kiln #2 to be 0.31 pounds per
ton of feed with the Loesche Mill turned off, in violation of 40 CFR 60 Subpart
UUU and condition D.3.5 of the Permit.
b. Pursuant
to 40 CFR 63, Subpart LLL and condition D.3.5 of the Permit, the combined
particulate matter (“PM”) emissions from the kiln #2 ( EU27), the fuel
oil-fired heater for kiln #2 (EU69) and kiln #2 bypass (EU28) shall not exceed 0.30 pounds per ton of feed
to kiln #2.
Respondent conducted compliance testing at the Site on September 14, 2006,
which demonstrated combined PM emissions from the kiln #2 to be 0.34 pounds per
ton of feed with the Loesche Mill turned on, in violation of 40 CFR 60 Subpart
UUU and condition D.3.5 of the Permit.
6.
Respondent
waived a Notice of Violation for the violation based on the stack re-test
conducted on November 30, 2006.
Pursuant
to 40 CFR 63, Subpart LLL and condition D.3.5 of the Permit, the combined
particulate matter (“PM”) emissions from the kiln #2 ( EU27), the fuel
oil-fired heater for kiln #2 (EU69) and kiln #2 bypass (EU28) shall not exceed 0.30 pounds per ton of feed
to kiln #2.
Respondent conducted compliance testing at the Site on November 30, 2006, which
demonstrated combined PM emissions from the kiln #2 to be 0.34 pounds per ton
of feed with the Loesche Mill turned off, in violation of 40 CFR 60 Subpart UUU
and condition D.3.5 of the Permit.
7.
Respondent
performed stack tests on June 8, 2007 and June 12, 2007 which demonstrated
emissions being approximately 0.03 pounds per ton of feed to kiln #2, in
compliance with 40 CFR 60 Subpart UUU and condition D.3.5 of the Permit.
8.
In recognition
of the settlement reached, Respondent waives any right to administrative and
judicial review of this Agreed Order.
II.
ORDER
1.
This Agreed
Order shall be effective (“Effective Date”) when it is approved by Complainant
or Complainant’s delegate, and has been received by Respondent. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Respondent shall
comply with 40 CFR 63, subpart LLL and Part 70 permit No. 019-25019-00008 and
any subsequent permit modifications.
3.
All submittals
required by this Agreed Order, unless Respondent is notified otherwise in
writing by IDEM, shall be sent to:
Matthew
Chaifetz, Enforcement Case Manager |
Office
of Enforcement – Mail Code 60-02 |
Indiana
Department of Environmental Management |
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4.
Respondent is
assessed a civil penalty of Twenty-Two Thousand Dollars ($22,000.00). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the Effective
Date. In the event that the civil
penalty is not paid within thirty (30) days of the Effective Date, Respondent
shall pay interest on the unpaid balance at the rate established by IC
24-4.6-1-101. The interest shall
continue to accrue until the civil penalty is paid in full.
5.
Civil penalties
are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number of this
action and shall be mailed to:
Indiana
Department of Environmental Management |
Cashier
– Mail Code 50-10C |
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6.
This Agreed
Order, and compliance with its terms and conditions, shall resolve all
violations cited in the Notice of Violation issued to Respondent listed in
Findings of Fact No. 4 and described in Findings of Fact No. 6.
7.
This Agreed
Order shall apply to and be binding upon Respondent and its successors and
assigns. Respondent’s signatories to
this Agreed Order certify that they are fully authorized to execute this Agreed
Order and legally bind the party they represent. No change in ownership, corporate, or
partnership status of Respondent shall in any way alter their status or
responsibilities under this Agreed Order.
8.
In the event
that any terms of this Agreed Order are found to be invalid, the remaining
terms shall remain in full force and effect and shall be construed and enforced
as if this Agreed Order did not contain the invalid terms.
9.
Respondent shall
provide a copy of this Agreed Order, if in force, to any subsequent owners or successors
before ownership rights are transferred. Respondent shall ensure
that all contractors, firms and other persons performing work under this Agreed
Order comply with the terms of this Agreed Order.
10.
This Agreed
Order is not and shall not be interpreted to be a permit or a modification of
an existing permit. This Agreed Order,
and IDEM’s review or approval of any submittal made by Respondent pursuant to
this Agreed Order, shall not in any way relieve Respondent of its obligation to
comply with the requirements of its applicable permit or any applicable Federal
or State law or regulation.
11.
Complainant does
not, by its approval of this Agreed Order, warrant or aver in any manner that
Respondent’s compliance with any aspect of this Agreed Order will result in
compliance with the provisions of any permit, order, or any applicable Federal
or State law or regulation.
Additionally, IDEM or anyone acting on its behalf shall not be held
liable for any costs or penalties Respondent may incur as a result of Respondent’s
efforts to comply with this Agreed Order.
12.
Nothing in this
Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or
injunctive relief under any applicable Federal or State law or regulation,
except that IDEM may not, and hereby waives its right to, seek additional civil
penalties for the same violations specified in the NOV or described in Findings
of Fact No. 6.
13.
Nothing in this
Agreed Order shall prevent IDEM or anyone acting on its behalf from
communicating with the EPA or any other agency or entity about any matters
relating to this enforcement action.
IDEM or anyone acting on its behalf shall not be held liable for any
costs or penalties Respondent may incur as a result of such communications with
the EPA or any other agency or entity.
14.
This Agreed
Order shall remain in effect until IDEM issues a Resolution of Case letter to
Respondent.
TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Essroc Cement Corp. |
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Craig Henry |
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Chief, Air Section |
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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For the Department of Environmental Management |
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By: |
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Deputy Attorney General |
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Date: |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY
OF |
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, 2008. |
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For the Commissioner: |
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Signed on January 28, 2008 |
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Robert B. Keene |
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Assistant Commissioner |
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Office of Legal Counsel and Enforcement |
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